Interior Department rule would set aside ‘Indian country’ lands in Alaska



rmauer@adn.comApril 30, 2014

The Interior Department announced Wednesday it will consider taking Alaska tribal land into trust, a move that could lead to pockets of “Indian country” in the state where tribal governments and courts would have authority to create their own laws and justice systems.

The move is opposed by the state, which has said that Indian country exists only on the state’s sole reservation, Metlakatla, in Southeast. Alaska Native tribes, supported by nonprofit law firms, said the Interior Department should have been taking land into trust years ago and had sued in federal court to affirm that belief.

A judge in Washington, D.C., agreed last year. The state has appealed to the D.C. Circuit U.S. Court of Appeals, but the Interior Department acted on the ruling by U.S. District Judge Rudolph Contreras.

The Interior Department is opening a 60-day comment period on the proposal.

“Everyone’s going to weigh in,” said Matthew Newman, an Anchorage attorney with the Native American Rights Fund. He expects the state, the Alaska Federation of Natives, Alaska Native corporations and tribes to submit comments, among others. Based on comments, Newman said, it’s possible the proposed rule won’t be adopted.

“I would not be bold enough to say it’s a sure thing,” Newman said. But even if the regulation is adopted, it would only authorize the Interior Department to accept applications for trust status. Approvals could take a long time and are not guaranteed, he said.

“We’re years away from a particular parcel being placed into trust status,” Newman said.

Acceptance of Indian country in Alaska was a key recommendation last year of the Indian Law and Order Commission, a bipartisan presidential and congressional task force. The commission attributed high rates of domestic violence and sexual assault in rural Alaska to the state’s top-down, centralized law enforcement and judicial systems. It recommended that tribes get increased authority to create their own local laws and to enforce them in tribal courts.

“Recent blue ribbon commissions have emphasized the need for the (Interior) Department to be able to take land into trust in Alaska,” the Interior Department said in announcing the proposed rule. “The basic thrust of the Indian Law and Order Commission’s recommendation is that the state of public safety for Alaska Natives, especially for Native women who suffer high rates of domestic abuse, sexual violence and other offenses, is unacceptable; providing trust lands in Alaska in appropriate circumstances would provide additional authority for Native governments to be better partners with the State of Alaska to address these problems.”

The rule barring the Interior Department from taking Alaska tribal lands into trust dates back to 1980, when the program was created for Native Americans in the Lower 48. It is one of several “Alaska exceptions” on the books denying Alaska Natives the same rights as Indians in the Lower 48 and in part is the legacy of the 1971 Alaska Native Claims Settlement Act.

Four village tribes sued in 2006 to overturn the rule — Akiachak and Tuluksak in the Kuskokwim River region, the Chilkoot Tribe in Haines and Chalkyitsik in Northwestern Alaska. They argued that the rule discriminated against Alaska Natives, and cited laws going back to the treaty under which Russia ceded Alaska to the United States that guaranteed land rights to the aboriginal people.

Newman said that if the new Interior rule is adopted and the department begins to take Native lands into trust, it would affirm the notion that Indian country exists in Alaska.

“It’s the embodiment of what Indian country is — geography upon which a tribe exerts its sovereign authority,” he said.

In a prepared statement, U.S. Sen. Mark Begich, D-Alaska, said Wednesday he had been urging the Department of the Interior to accept trust applications from Alaska Natives.

“In my view, DOI’s actions today are an important step to ensure Alaska tribes are self-determined and can adequately address public safety, economic development, and other priorities on tribal lands,” Begich said.

Reach Richard Mauer at or (907) 500-7388.

BIA proposes regulation to address land-into-trust appeals

The Obama administration is proposing a new regulation to address land-into-trust appeals in the wake of the U.S. Supreme Court decision in Salazar v. Patchak.

In Patchak, the Supreme Court ruled that opponents can sue the Bureau of Indian Affairs for up to six years after the land is placed in trust. As a result, the administration says it is no longer necessary to wait 30 days for any appeals.

“Specifically, this rule deletes the 30-day waiting period for implementation of decisions to acquire land in trust after such decisions are final for the [Interior] Department,” a forthcoming notice in the Federal Register states.

“Following the Patchak decision, this 30-day waiting period is now unnecessary because parties may seek, to the extent it is available, judicial review of the Secretary’s decision … even after the land is acquired by the United States in trust,” the notice states.

Assistant Secretary Kevin Washburn, the head of the BIA, said the new regulation will bring more clarity to the land-into-trust process. Tribes are invited to submit comments.

“The principal purpose of this proposed rule is to provide greater certainty to tribes in their ability to develop lands acquired in trust for purposes such as housing, schools and economic development,” Washburn said in a press release. “For such acquisitions, the proposed rule will create a ‘speak now or forever hold your peace moment’ in the land-into-trust process. If parties do not appeal the decision within the administrative appeal period, tribes will have the peace of mind to begin development without fear that the decision will be later overturned.”

Forthcoming Federal Register Notice:
Land Acquisitions: Appeals of Land Acquisition Decisions (To Be Published May 29, 2013)